Sylvia E. Nofsinger v. VCU
Filing
UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to proceed in forma pauperis (FRAP 24) [998931338-2] Originating case number: 3:12-cv-00236-JRS Copies to all parties and the district court/agency. [999077807]. Mailed to: Sylvia E. Nofsinger. [12-1961]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1961
SYLVIA E. NOFSINGER,
Plaintiff - Appellant,
v.
VIRGINIA COMMONWEALTH UNIVERSITY; E. DOUGLAS BOUDINOT, Dean,
School of Graduate Studies; CECIL B. DRAIN, Dean, School of
Allied Health Professions; THOMAS P. MAYHEW, Chair and
Associate Professor, Department of Physical Therapy; U. S.
PHYSICAL THERAPY, INC.,
Defendants - Appellees,
and
LISA D. SHOAF, Associate Professor, Department of Physical
Therapy; EMMA WHEELER, Assistant Professor, Chair of
Admissions,
Defendants.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
James R. Spencer, District
Judge. (3:12-cv-00236-JRS)
Submitted:
February 28, 2013
Decided:
April 2, 2013
Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
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Sylvia E. Nofsinger, Appellant Pro Se. Martha Murphey Parrish,
Assistant Attorney General, Catherine Crooks Hill, Christy
Monolo, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond,
Virginia; Annemarie DiNardo Cleary, Douglas P. Rucker, Jr.,
SANDS ANDERSON, PC, Richmond, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Sylvia E. Nofsinger appeals the district court’s order
granting Defendants’ motions to dismiss her complaint pursuant
to Fed. R. Civ. P. 12(b)(1) and 12(b)(6).
relate
to
her
dismissal
from
the
Nofsinger’s claims
Virginia
Commonwealth
University (“VCU”) graduate physical therapy program.
Pursuant
to
Physical
an
affiliation
Therapy,
Inc.
agreement
(“USPT”),
between
Nofsinger
VCU
and
enrolled
U.S.
in
a
required
clinical instruction course conducted by a USPT employee.
After
receiving a failing clinical grade and subsequent dismissal from
VCU, Nofsinger filed a complaint against VCU, USPT, and five
individual VCU faculty members.
For the reasons that follow, we
affirm.
We review de novo a district court’s order dismissing
a complaint for failure to state a claim, assuming that all
well-pleaded nonconclusory factual allegations in the complaint
are true.
2011).
Aziz v. Alcolac, Inc., 658 F.3d 388, 391 (4th Cir.
A Rule 12(b)(6) motion challenges the legal sufficiency
of the complaint.
Cir. 2009).
Francis v. Giacomelli, 588 F.3d 186, 192 (4th
“To survive a motion to dismiss pursuant to Rule
12(b)(6), plaintiff’s ‘[f]actual allegations must be enough to
raise a right to relief above the speculative level,’ thereby
‘nudg[ing]
their
claims
across
3
the
line
from
conceivable
to
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plausible.’”
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Aziz, 658 F.3d at 391 (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)).
Nofsinger
argues
that
the
district
court
erred
in
denying her due process claim.
Generally, a due process claim
requires
“whether
a
two-part
analysis:
[the
plaintiff]
was
deprived of a protected interest and, if so, what process was
his due.”
Logan v. Zimmerman Brush Co., 455 U.S. 422, 428
(1982).
Our review of the record establishes that Nofsinger
failed to allege a protected property interest in her continued
enrollment in VCU’s graduate program and that, in any event, VCU
afforded Nofsinger sufficient procedural process.
Nofsinger also appeals the district court’s denial of
her equal protection claim.
Fourteenth
Amendment
The Equal Protection Clause of the
requires
“that
situated should be treated alike.”
all
persons
similarly
City of Cleburne v. Cleburne
Living Ctr., 473 U.S. 432, 439 (1985).
“To succeed on an equal
protection claim, a plaintiff must first demonstrate that he has
been treated differently from others with whom he is similarly
situated
and
intentional
Garraghty,
that
or
239
the
unequal
purposeful
F.3d
648,
treatment
was
the
discrimination.”
654
(4th
Cir.
2001).
result
Morrison
of
v.
Nofsinger
reasserts her arguments that VCU treated her differently from
several similarly situated students and dismissed her from the
graduate program based on personal animus harbored against her
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by the individual defendants.
We conclude that the district
court correctly found that Nofsinger failed to specify how the
alleged
failed
students
to
were
establish
similarly
that
any
situated
and,
differential
furthermore,
treatment
was
the
result of discrimination.
Nofsinger also appeals the district court’s dismissal
of her breach of contract claim against USPT.
that
she
was
an
intended
third
party
Nofsinger alleges
beneficiary
of
the
affiliation agreement between VCU and USPT, asserting that USPT
breached
several
district
court
provisions
correctly
of
the
contract.
found
that
USPT
did
Because
not
make
the
the
ultimate decisions to assign Nofsinger a failing grade or to
dismiss her from the VCU graduate program, we conclude that the
district court correctly dismissed this claim.
Finally, Nofsinger asserts breach of contract claims
against VCU and the individual defendants.
Because Nofsinger
did not allege a breach of contract claim against the individual
defendants in the district court, we conclude that Nofsinger may
not
now
pursue
this
claim
in
this
court.
Nofsinger
also
challenges the district court’s determination that her contract
claims against VCU are barred by the Eleventh Amendment.
“The
existence of sovereign immunity is a question of law” reviewed
de novo.
S.C. Wildlife Fed’n v. Limehouse, 549 F.3d 324, 332
(4th Cir. 2008).
“In the absence of consent a suit in which the
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State or one of its agencies or departments is named as the
defendant is proscribed by the Eleventh Amendment . . . whether
the relief sought is legal or equitable.”
Papasan v. Allain,
478 U.S. 265, 276 (1986) (internal quotation marks and citations
omitted).
Because VCU did not consent to suit, the district
court properly dismissed Nofsinger’s contract claims against VCU
as barred by the Eleventh Amendment.
Accordingly,
forma
pauperis,
dispense
with
contentions
are
we
oral
although
affirm
the
argument
adequately
we
grant
leave
district
because
presented
in
to
court’s
the
the
facts
proceed
order.
in
We
and
legal
materials
before
this court and argument would not aid the decisional process.
AFFIRMED
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